BOARD DATE: 22 December 2011
DOCKET NUMBER: AR20110012577
THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:
1. Application for correction of military records (with supporting documents provided, if any).
2. Military Personnel Records and advisory opinions (if any).
THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:
1. The applicant requests correction of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) to show award of the Purple Heart.
2. He states:
* he was not given credit for wounds received in combat in the Republic of Vietnam (RVN)
* on 26 February 1969, the North Vietnamese Army and Viet Cong attacked the compound at Cu Chi
* he received a concussion wound to his face as the result of an explosion
3. He submitted no additional evidence.
CONSIDERATION OF EVIDENCE:
1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. The applicant's records show he was inducted into the Army of the United States on 6 December 1967.
3. His DA Form 20 (Enlisted Qualification Record) shows in:
a. item 31 (Foreign Service) that he served in the RVN from 19 May 1968 to 18 May 1969;
b. item 38 (Record of Assignments) that he was assigned to Company D, 4th Battalion, 9th Infantry Division, from 28 May to 20 December 1968;
c. item 38 that he was assigned to Headquarters and Headquarters Company, 25th Infantry Division, from 21 December 1968 to 15 May 1969;
d. item 40 (Wounds) no entry; and
e. item 41 (Awards and Decorations) no Purple Heart.
4. His record contains a Standard Form 88 (Report of Medical Examination), dated 5 November 1969, which was completed during his separation physical and does not show he received any wounds or injuries.
5. His record contains a Standard Form 89 (Report of Medical History), dated 5 November 1969, which shows in:
a. item 17 (State of Examinees' Present Heath in Own Words) that he wrote "good,"
b. item 33 (Have You Ever Had an Illness or Injury Other Than Those Already Noted?) that he checked "NO," and
c. item 34 (Have You Consulted or Been Treated by Clinics, Physicians, Healers, or Other Practitioners in the Past 5 Years?) that he checked "NO."
6. His record contains a DD Form 214 which shows he was honorably released from active duty on 5 December 1967 [sic] and transferred to the U.S. Army Reserve Control Group (Annual Training).
7. His record contains a DD Form 215 (Correction to DD Form 214), dated 11 September 1986, which corrected item 11d (Effective Date) of his DD Form 214 with a separation date of 5 December 1967 to show he was released from active duty on 5 December 1969.
8. A review of the Awards and Decorations Computer Assisted Retrieval System maintained by the Military Awards Branch of the U.S. Army Human Resources Command, which is an index of general orders issued during the Vietnam era between 1965 and 1973, failed to reveal any orders on file for the applicant awarding him the Purple Heart.
9. His name is not listed on the Vietnam casualty roster.
10. There are no medical records in his official military personnel file that show he was wounded due to hostile action in the RVN.
11. Army Regulation 600-8-22 (Military Awards) states the Purple Heart is awarded for a wound sustained while in action against an enemy or as a result of hostile action. Substantiating evidence must be provided to verify the wound was the result of hostile action, the wound must have required treatment by medical personnel, and the medical treatment must have been made a matter of official record.
DISCUSSION AND CONCLUSIONS:
1. The regulation governing award of Purple Heart indicates the wound for which the award is being made must have been a result of hostile action. Substantiating evidence must be provided to verify the wound was the result of hostile action, the wound must have required medical treatment by medical personnel, and the medical treatment must have been made a matter of official record.
2. Regrettably, there is no evidence in the applicant's record and he provided insufficient evidence to show he was wounded as a result of hostile action and was awarded the Purple Heart or that he meets the above criteria. Therefore, there is insufficient evidence in which to base correction of his DD Form 214 to show award of the Purple Heart.
BOARD VOTE:
________ ________ ________ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
____X___ ___X_____ _____X__ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.
___________X___________
CHAIRPERSON
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.
ABCMR Record of Proceedings (cont) AR20110012577
2
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
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